HomeMy WebLinkAboutEXHIBIT B-DEV. AGREEMENTEXHIBIT "B"
DEVELOPMENT AGREEMENT BETWEEN
CITY OF MIAMI, FLORIDA AND SWIRE
PROPERTIES, REGARDING DEVELOPMENT
OF THE BRICKELL CITICENTRE PROJECT
THIS AGREEMENT is entered this clay of July, 2011, by and between Swire
Properties, Inc., a Florida for profit corporation ("Swire"), and the CITY OF MIAMI,
FLORIDA, a municipal corporation and a political subdivision of the State of Florida ("City")
(Swire and the City together referred to as the "Parties").
WITNESSETH:
WHEREAS, Swire holds fee simple title to 9.03 acre
downtown Miami,
in the Brickell area of
WHEREAS, the property is more specificallylocated south of the Miai,.River, west of
Brickell Avenue, north of SW 8th Street and east,of`NW 1s` Avenue (the "Prone* y sketch and
legal descriptions of which are attached as Exhibit "A";.I`'e
routes;
WHEREAS, the Property spans,,four city blocks a1fd7s located between two mass transit
WHEREAS, the Property is currently
vacant, undeveloped lots secured by chain linkfenc
WHEREAS, the
develop a world cla,
Property;
urre�?t
oWI1t6W
WHEREAS, Swire
pedestrianOerfte- roan develfo)
needed zrefail for the 1 and
ized in tha predominantly consists of
status of the TP.operty is iltconsistent with the City's vision to
> and the wishes to encourage redevelopment of the
evelo tYille Property into a high -density, mixed -use,
klent known fits Brickell CitiCentre which will provide much
WWtown area of Miami (the "Project");
u.
W REAS, in ordtibi to maximize efficiency and design of Brickell CitiCentre, Swire
desires to construct two Levels of underground parking;
WHEREAS, a process exists within the City's zoning code ("Miami 21 ") which allows
parcels of more tha`ntne abutting acres to be master planned to allow greater integration of
public improvements ajd infrastructure, and greater flexibility so as to result in higher or
specialized quality bu.ilfding and streetscape design;
WHEREAS, the result of this master planning process is known as a "Special Area Plan"
or "SAP;
WHEREAS, Miami 21 requires development within an SAP to be governed by a
Development Agreement between the property owner and the City;
{N13037260;71 1
WHEREAS, the City and Swire wish to rezone the Property from T6-48B-0 to Brickell
CitiCenter SAP in order to encourage redevelopment of the Property and effectuate the Project;
WHEREAS, this .Development Agreement ("Agreement") satisfies the requirement set
forth in Miami 21;
WHEREAS, the City and Swire wish for development of the Project to proceed
substantially in accordance with the Regulating Plan and Design Guidelines attached as Exhibit:
"B" ("Regulating Plan and Design Guidelines") and the Conceptual Site Plan attached as
Exhibit "C" ("Conceptual Site Plan");
WHEREAS, the Property is designated Restricted Conlmerciial, with an Urban Central
Business District Overlay, in the Miami Comprehensive 7eghborhood Plan (the
"Comprehensive Plan");
WHEREAS, the City and Swire wish for development of the Projectto proceed in a
manner which is consistent with the Comprehensive Phan;
WHEREAS, the Project is located in the Dove
("DDRI");
WHEREAS, as of the Effective
accommodate the Project and Swire has reserve
the City;
evelopment of Regional Impact
DDRI has suffioient.development capacity to
capacity thi ugh appropriate means with
WHEREAS, thelackof certainty in thelapproval of$cevelopment can result in a waste of
economic and land resources, cfrscourage sound ,capital improvement planning and financing,
escalate the cost of housing and `development, and. discourage commitment to comprehensive
planning;
Wirft:' tsurancet :,a developero hat it may proceed in accordance with existing
_,
laws and 1 ohcres, suThect`to the'c editions of a development agreement, strengthens the public
plannrmg°process, encourages sound capital improvement planning and financing, assists in
assturng : mere are adequate caprt i1- facilities for the development, encourages private
�utici patio- ,corn rehensrV ' lannrntr and reduces the economic costs of development;
P l " ,.. P' , b� P
WHEREAS, the City;Commission pursuant to Ordinance No. 11-XX, adopted July XX,
2011 has authorized the Gi',ty Manager to execute this Agreement upon the terms and conditions
as set forth below, and the Boards of Directors have authorized Swire to execute this Agreement
upon the terms and conditions set forth below;
NOW THEREFORE, in consideration of the mutual covenants and agreements
hereinafter contained, the parties mutually agree and bind themselves as set forth herein:
Section 1. Consideration. The Parties hereby agree that the consideration and obligations
recited and provided for under this Agreement constitute substantial benefits to both parties and
thus adequate consideration for this Agreement.
(M3037260;7) 2
163 3
Section 2. Rules of Legal Construction.
For all purposes of the Agreement, unless otherwise expressly provided:
(a) A defined term has the meaning assigned to it;
(b) Words in the singular include the plural, and words in plural include the singular;
(c) A pronoun in one gender includes and applies to other genders as well;
(d) The terms "hereunder", "herein", "hereof, "hereto nd sii`ch similar terms shall
refer to the instant Agreement in its entirety a, not to individual sections or
articles;
(e)
The Parties hereto agree that this Agree shill not bemo„
against either the City or Swire, as allpties are drafters of tht.
e strictly construed
greement; and
(f) The recitals are true and correct and ate incorporated into and matt ril part of this
Agreement. The attached exhibits shag e ele f zeeadoptecl and incorporated into
the Agreement; provided however, that thi4�,Agreement shall be deemed to control
f V:
in the event of a conflict between the attachmets_and this Agreement.
Section 3. Definitions. Capitalized to n :whzelare not specifically defined herein shall
have the meaning given in Miami 21.
"Agreement" meanSE
"City" mean
subdivision of
instrumentalities su
omprenen
omprehensive
Duda Statutes
tatutes (2010), S
2), Florida Sfitutes (2010), which is in effect as of the Effective Date.
e City \o
Stat&r.
greement between the Ci
'�F
Miami, a 'Municipal
of Florida, a'ndr,. all
ictio'Lt ereof.
corporation and a political
departments, agencies and
laneans the comprehensive plan known as the Miami
e1ghborhobd Plan, adopted by the City pursuant to Chapter 163,
, meeting" the requirements of Section 163.3177, Florida
ion 1C3.3178, Florida Statutes (2010).and Section
"County "''Moans Miami -Dade County, a political subdivision of the State of'
Florida.
"Development" means the carrying out of any building activity, the making of
any material change in the use or appearance of any structure or land, or the
dividing of land into three or more parcels and such other activities described in
Section 163.3221(4), Florida Statutes (2010).
"Effective Date" is the date of recordation of the executed, original version of
this Agreement.
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"Existing Zoning" is (a) Miami 21 Code, January 2011, specifically including
the Brickell CitiCentre SAP, and (b) the provisions of the Charter and City Code
of Miami ("Code") which regulate development, specifically including Chapters
10, 13, 22, 23, 36, 54, 55 and 62 of the Code as amended through the Effective
Date, which together comprise the effective land development regulations
governing development of the Property as of the Effective Date.
"Land" means the earth, water, and air, above, below, or on the surface and
includes any improvements or structures customarily regarded a4land.
F'S*.
"Laws" means all ordinances, resolutions, regulations, comp ehensive plans, land
development regulations, and rules adopted by a local,rgovetfoment affecting the
development of land.
"Public Facilities" means major capital improyeri exits, including, but»not limited
to, transportation, sanitary sewer, solid waste, drainage, potable.: water,
educational, parks and recreational, streets; parkingfand health systems and
facilities. t, j
Section 4. Purpose. The purpose of this Agreement tFfor the City to authorize Swire to
develop the Project pursuant to the Brie kell CitiCentre SAP: This Agreement will freeze, as of
the Effective Date, the land development regulations which WI1g%ern development of the
Project, thereby providing the Parties with addi i®nal certainty dutitrig the development process.
This Agreement also satisfies Section 3.9.1.ff{
Section 5. Intent. Sfwl2'e niicl-, the City intend for this Agreement to be construed and
implemented so as to yeffectuate tire: purpose of the Brickell CitiCentre SAP, this Development
Agreement, the Com ehensivet Plan and the Florida Local Government Development
Agreement Act, Section 163 3220' 163,3243, Florida Statutes (2010).
Section 6 r. Applic bilrty. This Agreement only applies to the Project.
Section? Term of Ageement, Effective Date and Binding Effect. This Agreement shall
have a tettrL of thirty (30)years from the Effective Date and shall be recorded in the public
records of M a ni-Dade Couiitfiy, and filed with the City Clerk. The tenn of this Agreement may
be extended byninutual consent of the Parties subject to a public hearing, pursuant to Section
163.3225, Floridak atutes (2010). This Agreement shall become effective on the Effective Date
and shall constitute a covenant running with the land that shall be binding upon, and inure to, the
benefit of the parties, their successors, assigns, heirs, legal representatives, and personal
representatives.'
Section 8. Permitted Development Uses and Building Intensities.
(a) Brickell CitiCentre SAP Designation. The City has designated the Property as
Brickell CitiCentre SAP on the official zoning Atlas of the City, pursuant to the
applicable procedures in Miami 21. The Brickell CitiCentre Regulating Plan and
Design Guidelines are attached as Exhibit "C". In approving the Brickell
CitiCentre SAP, the City has determined that the uses, intensities and densities of
t M3037260;7) 4
development permitted thereunder are consistent with the Comprehensive Plan
and the Existing Zoning.
(b) Density, Intensity, Uses and Building Heights.
(c)
(1)
As of the Effective Date and pursuant to the Brickell CitiCentre SAP, the
density proposed for the Property is approximately 150 units per acre, and
the intensity proposed for the Property is measured by an above -ground
Floor Lot Ratio of 14 (specifically excluding underground parking and
circulation).
(2) The non-residential development permitted on the Property includes, but is
not limited to, the following uses: o,=ffice, 'h {te1, retail, entertainment,
medical office, academic space and ipy otheises permitted by the
Existing Zoning.
(3) As of the Effective Date anti pursuant to'the Brickell CitiCentre SAP, the
maximum height proposed for the Project*683 feet, and t ,einaximuml
height proposed for the Pedestal is 1Z9 det (Phase I and IA) and 160 feet
(Phase II).
(4) Nothing herein sha l prohub t Swire frort requesting an increase in the
density or intensity o de eiq silent permittedgon the Property, as long as
such increase in densify,or in ns1 r is consistent with the Comprehensive
Plan as it exists on the E fe6tive Date"
Environmental The City finds that the Project will confer a significant net
improv meat upon t`he publicly accessible tree canopy in the area. The City and
Swire agree hat Swie wfll comply with the intent and requirements of Chapter
the Citytree replacement within 1 mile of the Project,
hasrs.Non, 7t1i Street; u Street and South Miami Avenue. City agrees
to facilitate ;le perrrut1ting and planting of replacement trees on all publicly owned
property in G marea.
(d) Archaeologic1� Because of the Project's location in a high probability
e iaeologrcal tione, the City will require Swire to obtain a certificate to dig prior
to any,: ground disturbing activities. Ilowever, in no case shall the City require
archae6 ogical monitoring after soil/tree removal (ie, during excavation of the
(e)
limestoi e'bedrock).
Signage. The Project's location within the center of the City's Urban Core provide
an opportunity to incorporate signage, including the display of art or graphics
with or without commercial messages, in a fashion that will aesthetically enhance
the view corridors along the major County and state arterials bounding the Project
site.
(1)
Geographical area. Notwithstanding the definition of Geographical area
in Sec. 62-602 of the City code and the boundaries depicted in the Mural
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area described in Exhibit. "A" to Mural ordinance (rile ID 10-01249),
adopted on January 13, 2011, the City hereby authorizes the issuance of a
Mural Permit(s) authorizing the erection, placement, posting, painting,
display, maintenance, or hanging of Murals on a Wall located on the
Property designated as part of the Project SAP.
(2) Spacing between murals and number of murals permitted per building.
Murals located on Walls within the Project SAP shall not be subject to
spacing limitations set forth in Sec. 62-606;(3) of the City code.
Notwithstanding the language of Sec. 62-606,(3), nultiple murals may be
located on the same side of the building.
(3) Mural size. Murals shall be allowed tabovei�tipto eighty percent (80%)
of the Wall, or thirty-three percent (33% of the Weill if the Mural covers
windows. Murals on the same Wa11,s'either individually or in aggregate,
shall not exceed:
a. Project West Block, West
b.
c. Project East Blo'
d. Project East Block`kSouth
�t1..
Project Northplock, East Elevat1 o]
}e.d'estal — 10,000 s
eclestal — 10,500 sq. ft.
at Elevation Pe 2.2,500 sq. ft.
West Block, South Elevation" Pedestal — 4,000 sq. ft.
Project East Block, Noi Elevation Pedestal — 6,500 sq. ft.
opal;Elevation Pedestal — 4,500 sq. ft.
:ere a ddjflict exists between the Outdoor Advertising Zone Signage
imensrois specified on Pages A2.31, A2.32, A2.35, and A2.37 of
the Meet SAP Regulating Plan, the maximum dimensions specified in
this su <_aectionvshall control.
Section 9. Connectivity and Activity within Public Right -of -Way.
yr
Connal1A. A critical element to the success of the Project is above grade and
below Ode connectivity between blocks and through public rights -of -way, This
connectivity should be encouraged both within Ole Project and between the
Project and Abutting property. This connectivity will result in ease of access,
minimized pedestrian and vehicular conflicts, and reduction of the Project's traffic
impacts by permitting internalized traffic circulation. In order to activate the
above grade connections, Swire proposes to locate commercial activity in this
area.
(a)
(M3037260;7 J 6
(2)
Swire recognizes that such connectivity and commercial usage may require
approval of other governmental agencies such as Miami -Dade County and the
Florida Department of Transportation. The City finds and determines that
establishing such connectivity and commercial usage serves a public purpose, and
City agrees to support Swire's efforts to obtain any authorization to establish such
connectivity and commercial usage.
The City finds that the authorization of such uses within the public right-of-way
will have no adverse effect(s) on the provision of naturallight, circulation of air,
or increase the adverse effects resulting from fire, 'floods, tornadoes, and
hurricanes. It is further found that the presence
s'u(
way shall in no way diminish access for fire-f ght%rtg apparatus or rescue and
salvage operations; diminish traffic, transportation and circulation; or adversely
impact the advancement of the safety, healfh,, atnenity aidzgeneral welfare within
the City.
Given the public benefits conferred tipop the Cfly.,by the above- e nand below -
grade connectivity between blocks arid' ; acroSS Fhe public rights -of -way, the
provisions of Sec. 54-186 shall not apply vq1%t}nthe Brickell CitiCentre SAP.
(b) Construction of encroachRiertts within the Pu6Mc-Rig,ht-of-Way. The City finds
that the proposed encroachment does not undujy restrict the use of the public
right-of-way and is a necessary xessential elemeift in the construction of the
pedestrian walkways above the publicriglits ;of way and vehicular underpasses
below the same rights -of -way.€ '1?h°e adoptioi of this Agreement shall serve to
qrve
satisfy rhteregnrements set forthIn Sec. 55-I4"(b) of the City Code.
fr,`T` k' .
NotvvithsYanding theorequirements Hof Sec. 55-14(c) of the City Code, the City
agrees to watve anf claims tpTayment of a user fee in connection with the
action oiiheafoteremttoned encroachments into the public rights -of -way.
FurtherAgreedipnt,, shall satisfy the requirements of Sec. 55-14(d) of the City
Code. In eo sideratrotn for- authorizing the construction of the aforementioned
encroachmenfs,;Swire,fftirther covenants to:
aintaFin the above -grade pedestrian walkways and below -grade vehicular
iderrp:asses in accordance with the Florida Building Code and the City
ai'lter and Cocle.
'Provide an insurance policy, in an amount determined by the city's risk
manager, naming the city as an additional insured for public liability and
property damage. The insurance shall remain in effect for as long as the
encroachment(s) exist in the right-of-way. Should Swire fail to continue
to provide the insurance coverage, the City shall have the right to secure
similar insurance policy in its name and place a special assessment lien
against the owner's abutting private property for the total cost of the
premium.
( M3037260;7 7
(c)
(3)
Swine shall holcl harmless and indemnify the City, its officials and
employees from any claims for damage or loss to property and injury to
persons of any nature whatsoever arising out of the use, construction,
maintenance or removal of the pedestrian walkways and vehicular
underpasses and from and against any claims which may arise out of the
granting of permission for the encroachment or any activity performed
under the terms of this Agreement.
Activity within the Public Right -of -Way. Notwithstatding the limitations set
forth in Sec. 54-186 of the City Code, the City,, shall permit Food Service
Establishment(s) and/or General Commercial uses, a ;:'defined in Miami 21, in the
above -grade pedestrian walkways located awithin the public right-of-way,
following approval by SAP Warrant.
Section 10. Project Approval.
(a)
Future Development Review. Not edevelopment within the BriakellYCitiCentre
ess
SAP shall proceed pursuant to the procestalsliiahed in the Briaell CitiCentre
Regulating Plan and Design Guidelines, aitacLed as Exhibit "C". The criteria to
be used in determiningwhether future cjeVielopment shall be approved is
consistency with the Coplehensive Plan, Agreement and the Brickell
CitiCentre SAP.
(b) Prohibition on Downzoning.
(1) T
may aue a1
Sectio�f
written no
ireliensive Plan;this Agreement and the Brickell CitiCentre SAP
1 govern::, development of the Property for the duration of the
reement i,The City's laws,4and policies adopted after the Effective Date
to the Property only if the determinations required by
Vida Statutes (2010) have been made after 30 days
d_e to Swire and at a public hearing.
(2) Pulsua t to Section 163.3233(3), Florida Statutes (2010), this prohibition
on dow zoning supplements, rather than supplants, any rights that may
'qtavest to= Swire under Florida or Federal law. As a result, Swire may
challeie any subsequently adopted changes to land development
1 egul aeons based on (a) common law principles including, but not limited
equitable estoppel and vested rights, or (b) statutory rights which may
accrue by virtue of Chapter 70, Florida Statutes (2010).
(c) Development of Regional Impact.
(1)
City and Swire agree that as of the Effective Date, sufficient capacity
remains under the DDRI to accommodate the Project and that Swire has
reserved the capacity necessary to develop the Project.
(2) City agrees that any DRI development order which the City adopts after
the Effective Date and which applies to the Property will (i) be consistent
{ M3037260;7 ] 8
with this Agreement and the BrickellCitiCenire SAP, (ii) include a
Use/Intensity conversion table to allow for a reasonable level of flexibility
with respect to the mix and intensity of uses :in order to respond to
changing market conditions.
Section 11. Retail Specialty Center Designation. Pursuant to Chapter 4 of the City Code,
each block of the four block Brickell CitiCentre Property is designated as a retail specialty
center.
Section 12. Job Creation. Swire shall consult with local and/or stateenconomic development
entities regarding job training and job placement services to city,residentsseeking employment
opportunities with potential employers which will locate or estarltsiness within the Project.
Section 13. Local Development Permits.
(a) The development of the Property nt accordance with the Existing Zoning is
contemplated by Swire. The ProjecEtlay requne. additional pert rts or approvals
from the City, County, State, or Federal, goverAttent and any ditvision thereof.
Subject to required legal process and approvals;' the' City shall make a good faith
effort to take all reasonable steps to cooperate with and facilitate all such
approvals, including acting as an applicant. - Such approvals include, without
limitation, the following a pro als and permits and an ' successor or analogous
approvals and permits:
(b)
(1) SubdiyAslon plat and/or waiudi of plat a provals;
(2)
(4)
(5) Storif. iter Pettit ts;
ovenant
Tenants;
;Unity of Title acceptance or the release of existing unities or
�4-
(7)
use and/or occupancy;
Develoment of Regional Impact approval, modification or exemption;
and
other official action of the City, County, or any other government
gency having the effect of permitting development of the Property.
In the event that the City substantially modifies its land development regulations
regarding site plan approval procedures, authority to approve any site plan for a
project on one of the Property shall be vested solely in the City Manager, with the
recommendation of the Planning Director. Any such site plan shall be approved if
it meets the requirements and criteria of the Existing Zoning, the Comprehensive
Plan and the terms of this Agreement.
(M 3037260;7 ( 9
Section 14. Consistency with Comprehensive Plan. The City finds that development of the
Property in conformity with the Existing Zoning is consistent with the Comprehensive Plan. As
of the Effective Date, Swire is conducting an extensive analysis of the Public Facilities available
to serve the Project. In the event that the Existing Zoning and/or the Comprehensive Plan
require Swire to provide additional Public Facilities to accommodate the Project, Swire will
provide such Public Facilities consistent with the timing requirements of Section 163.3180,
Florida Statutes (2010). Swire shall be bound by the City impact fees and assessments in
existence as of the Effective Date of this Agreement.
Section 15. Necessity of Complying with Local Regulations4Mtative to Development
Permits. Swire and the City agree that the failure of this Agreement to address a particular
permit, condition, fee, term, license, or restriction in effect on tyre Effeeetive Date shall not relieve
Swire of the necessity of complying with the regulation gove a ng sat permitting requirements,
conditions, fees, terms, licenses, or restrictions.
Section 16. Reservation of Development Rights.
(a) For the term of this Agreement, the Gty hereby agrees that it sh 111 permit the
development of the Property in accoi'd�ne with the Existing Zoning, the
Comprehensive Plan and,the Agreement.
(b) Nothing herein shall proincrease in, the density or intensity of
development permitted on the lropty in a manier consistent with (a) the
Existing Zoning anti/or the ;;Connprel ensiye P1`an, (b) any zoning change
subsequently regnested or initiated by Swire 'in accordance with applicable
lovisions` o t o i11 c anyzonit change su�bse uentl y enacted bythe City.
.�O �. q )
(c) The'expixAwon or termination of tluts Agreement shall not be considered a waiver
of, or hmftati�pn u on, the rights, rricluding, but not limited to, any claims of
ested.rights or equrteVtppp l obtained or held by Swire or its successors or
contin*development of the Property in conformity with Existing
Zoning and all prior anti subsequent development permits or development orders
granted byhe_City.
Section 17 Brickell Trol, Swire acknowledges that the City is currently planning to
develop a trolley system which may traverse or abut the Brickell CitiCentre District. Swire
agrees to cooperate W>th theCity so that any portion of the trolley route which runs through, or
adjacent to, the Brickell CitiCentre District can be accommodated within the dedicated public
rights -of -way. City a`ees to evaluate whether at least one northbound and one southbound
trolley stop can be incorporated into the Brickell CitiCentre District.
Section 18. Annual Review.
(a) The City shall review the development that is subject to this Agreement once
every 12 months, commencing 12 months after the Effective Date. The City shall
begin the review process by giving notice to Swire, a minimum of 30 days prior to
the anniversary date of the Agreement, of its intention to undertake the annual
review of this Agreement.
t M3037260;7 J 10
(b) Any information required of Swire during an annual review shall be limited to
that necessary to determine the extent to which the Developer is proceeding in
good faith to comply with the terms of this Agreement.
(c) if the City finds on the basis of competent substantial evidence that Swire has not
proceeded in good faith to comply with the terms of the Agreement, the City may
terminate or amend this Agreement after providing 30 days written notice to
Swire and at a public heaping.
Section 19. Notices.
(a) All notices, demands and requests which may of are required to be given
hereunder shall, except as otherwise expressly provic)ed, be in writing and
delivered by personal service or sent by United States registered or Certified
Mail, return receipt requested, postage prepaid., or by overnigki.t express delivery,
such as Federal Express, to the par tnesrat the addresses listed le]tw. Any notice
given pursuant to this Agreement shad be deemed given when, ecelved. Any
actions required to be taken hereunderch fad on, Saturday, Supd`'ay, or United
States legal holidays shall be deemed to bepefformed timely when taken on the
succeeding day thereafterwhich shall not be aSaturday, Sunday or legal holiday.
To the City:
City Manager
City of Miami
3500 BarOmerican Dri
33133
erside`r"C_
Ave., 9th�F1oor
To Swire:
StephdkOwens
501 Bi okell Key Drive, Suite 600
=�`ty:
ianli--FL 33131
:nth copies to:
'Akerman Senterfitt
Attn: Neisen Kasdin
1 SE 3" I Avenue, 25`h Floor
Miami, FL 33131
(b) Any Party to this Agreement may change its notification address(es) by providing
written notification to the remaining parties pursuant to the terms and conditions
of this section.
(M 3037260;7 } I I
Section 20. Exclusive Venue, Choice of Law, Specific Performance. It is mutually
understood and agreed by the parties hereto, that this Agreement shall be governed by the laws
of the State of Florida, and any applicable fecleral law, both as to interpretation and performance,
and that any action at law, suit in equity or judicial proceedings for the enforcement of this
Agreement or any provision hereof shall be instituted only in the courts of the State of Florida or
federal courts and venue for any such actions shall lie exclusively in a court of competent
jurisdiction in the County. In addition to any other legal rights, the City and Swire shall each
have the right to specific performance of this Agreement in court. Each party shall bear its own
attorney's fees. Each party waives any defense, whether asserted by motion or pleading, that the
aforementioned courts are an improper or inconvenient venue. Mor<eover,-,the parties consent to
the personal jurisdiction of the aforementioned courts and irrevocably waive any objections to
said jurisdiction. The parties irrevocably waive any rights to alibiy 1�
Section 21. Voluntary Compliance. Swire and the Cityagrde that in e-event all or any part
of this Agreement is struck clown by judicial proceeding or preempted'`by legislative action,
Swire and the City shall continue to honor the terms and conditions of this Ageentent to the
extent allowed by law.
Section 22. No Oral Change or Termination.
appendices appended hereto and incorporated herein
Agreement between the parties with respect to the
supersedes any prior agreements or understandings
subject matter hereof, and no change, modF icatio
be effective unless such change, modification nor dis
against whom enforcement of the di change, moffcatio
3z
cannot be changed or terminated orally.
Section 23.
Agreement, throughout t
applicable federal,
administrative order pernuts,
respectr�ue Parties' obligations
amencldd from time to time,-
ate
Conipliattce _wrth Applicable Law Subject to
greement, Swire
regulations,
and procedures and o
ermance under this
This Agreement and the exhibits and
by ie{erence, if any, constitute the entire
subjecf matter hereof. This Agreement
between the parties with respect to the
ischarge hereof in whole or in part shall
7writing and signed by the party
n or discharge is sought. This Agreement
ivies
Section 24 TRepresentatiof Representatives. Each party
Agreement has been duly artdorized, delivered and executed
legal, valid and binding obligation of such party, enforceable in
the terms and conditions of this
and City shall comply with all
codes, ordinances, resolutions,
rders that govern or relate to the
Agreement, all as they may be
represents to the others that this
by such party and constitutes the
accordance with its terms.
Section 25. No Ex kisive Remedies. No remedy or election given by any provision in this
Agreement shall be deemed exclusive unless expressly so indicated. Wherever possible, the
remedies grantee[ hereunder upon a default of the other party shall be cumulative and in addition
to all other remedies at law or equity arising from such event of default, except where otherwise
expressly provided.
Section 26. Failure to Exercise Rights not a Waiver: Waiver Provisions. The failure by either
party to promptly exercise any right arising hereunder shall not constitute a waiver of such right
unless otherwise expressly provided herein. No waiver or breach of any provision of this
{ M3037260;7) 12
Agreement shall constitute a waiver of any subsequent breach of the same or any other provision
hereof, and no waiver shall be effective unless made in writing.
Section 27. Events of Default.
(a) A Developer Party shall be in default under this Agreement if any of the
following events occur and continue beyond the applicable grace period: a
Developer Party fails to perform or breaches any term, covenant, or condition of
this Agreement which is not cured within thirty (30) days after receipt of written
notice from the City specifying the nature of such breach provided, however, that
if such breach cannot reasonably be cured withinthirty. (30) days, then a
Developer Party shall not be in default if it conmiences to cure such breach within
said thirty (30) day period and diligently proseputes such Ec.ure to completion.
(b) The City shall be in default under thisgreement if the City fails to perform or
breaches any term, covenant, or couclaon of this Agreement and usuch failure is
not cured within thirty (30) days after receipt ofr written notice fro,a'`Developer
t `r
Party specifying the nature of such breach, proytded,, however, thatf such breach
cannot reasonably be cured within thirty(3�Q)-c ays, the City shall not be in default
(c)
if it commences to cure such breach wi
diligently prosecutes such titre to completion.
It shall not be a default under this
by a court of competent jurisdiction
shall survivesue
to terminate
$aid thirty (30) day period and
teement if either"party is declared bankrupt
tsh and obligations in this Agreement
bankruptcy of ei`er party G The parties hereby forfeit any right
,eement upon, the bankruptcy of the other party.
(d) The<default of any Developer Partyl oz ;successor or assignee of any portion of a
Developer. Patty'stght�s hereunder 'shall not be deemed a breach by any other
weloper Pa't of any ofhe> successor or assignee of any portion of the rights of
1 i "
eueloper Party lereunder or any other successor or assignee.
(a) Neither party $ 'ay terminate this Agreement upon the default of the other party,
tut shall have 411 of the remedies enumerated herein.
(b) Upo) flie occurrence of a default by a party to this Agreement not cured within
the applicable grace period, Swire and the City agree that any party may seek
specific'" performance of this Agreement, and that seeking specific performance
shall not waive any right of such party to also seek monetary damages, injunctive
relief, or any other relief other than termination of this Agreement. The City
hereby acknowledges that any claim for damages under this Agreement is not
limited by sovereign immunity or similar limitation of liability.
Section 29. Severability. If any term or provision of this Agreement or the application thereof
to any person or circumstance shall, to any extent, hereafter be determined to be invalid or
unenforceable, the remainder of this Agreement or the application of such term or provision to
) M3037260;7) 13
persons or circumstances other than those as to which it is held invalid or unenforceable shall not
be affected thereby and shall continue in full force and effect.
Section 30. Assignment and Transfer. This Agreement shall be binding on Swire and its
heirs, successors and assigns, including the successor to or assignee of any Property Interest.
Swire, at its sole discretion, may assign, in whole or in part, this Agreement: or any of its rights
and obligations hereunder, or may extend the benefits of this Agreement, to any holder of a
Property Interest without the prior written consent or any other approval of the City. Any such
assignee shall assume all applicable rights and obligations under this Agreement.
Section 31.. Obligations Surviving Termination Hereof. Notwitsstanding and prevailing over
any contrary term or provision contained herein, in the event of ay lawful termination of this
Agreement, the following obligations shall survive such terlin`hation sand continue in full force
and effect until the expiration of a one year term following the earlier of the effective date of
such termination or the expiration of the Tenn:(i) Nf�e exclusive venue and choice of law
provisions contained herein; (ii) rights of any party au-ising during or attributable to the period
einent, and (iii) any other teirm or provision
00,
e termination or expiration hereof or is
prior to expiration or earlier termination of this
herein which expressly indicates either that it survive&
or may be applicable or effective beyond the expiration or, einmtted early termination hereof.
Section 32. Lack of Agency Relations
establishing an agency relationship betWe'
employees, agents, contractors, subsidiaries,
agents, instrumentalities, employees, or contractors,
the City, its contractors, agents and employees shall no
employees of Swire or rt subsiddiaries, divisions or affiliates'
Fi:�::l., s4r
Section 33.
(a)
Nothing contahed; herein shall be construed as
City and SMrre- arty neither Swire nor its
r 74Sird s,._affihates�itii guests shall be deemed
for any purpose hereunder, and
deemed contractors, agents, or
Cooperation; Expedited Permitting and;Time is of the Essence.
arties agree to _With each other to the full extent practicable
iurserant to the fetos and conditions of this Agreement. The Parties agree that
time is o£ fhe. essence al, aspects of their respective and mutual responsibilities
pursuant to itis Agree-Ont. The City shall use its best efforts to expedite the
permitting army yapprova1 process in an effort to assist Swire in achieving its
fevelopment .nd construction milestones. The City will accommodate requests
roan Swue's, general contractor and subcontractors for review of phased or
multiple permitting packages, such as those for excavation, site work and
foundations, building shell, core, and interiors. In addition, the City will
designal'e`an individual within the City Manager's office who will have a primary
(though not exclusive) duty to serve as the City's point of contact and liaison with
Swire in order to facilitate expediting the processing and issuance of all permit
and license applications and approvals across all of the various departments and
offices of the City which have the authority or right to review and approve all
applications for such permits and licenses.
(b) Notwithstanding the foregoing, the City shall not be obligated to .issue
development permits to the extent a Developer Party does not comply with the
(M3037260;7 ) 14
applicable requirements of the Existing Zoning, the Comprehensive Plan, this
Agreement and applicable building codes.
Section 34. Enforcement.
(a) In the event that Swire, its successors and/or assigns fails to act in accordance
with the terms of the Existing Zoning, the City shall seek enforcement of said
violation upon the subject Property.
(b) Enforcement of this Agreement shall be by action agatns:;any parties or person
violating, or attempting to violate, any covenants setaorth in"this Agreement. The
prevailing party in any action or suit pertaining to or at sing out of this Agreement
shall be entitled to recover, in addition to cost ,and disbursements allowed by law,
such sum as the Court may adjudge to be reatsoffable for Uiie services of this/her/its
attorney.
�:
(c) This enforcement provision shall be 7tt addition tp any other remeiiesavailable at
law, in equity or both.
Section 35. Amendment or Termination by Mutual Consent. This Agreement may not be
amended or terminated during its term eVeeptaby mutual agreement of Swire and the City. Prior
to any amendment or termination of thick:,„Agr'eernent during ,10,the City shall hold two
public hearings to consider and deliberate such ath ndment or term ir ation.
Section 36. Third Party fefense. City an _Swine shall each,` at their own cost and expense,
vigorously defend any clanns, suits_ or demands N,b -ought agal<tlst them by third parties challenging
the Agreement or theProject, or objecting to any(aspect thereof, including, without limitation, (i)
rant toSection 163.32apFlorida Statutes (2010), (ii) a petition for
writ of certiorari, (iv) anal
liability, or expense
the other widtten notro
responses, filings, and plea
ion for declaratory judb -lent, or (iv) any claims for loss, damage,
rnclud II easonnbi attor eys' fees). City and Swire shall promptly give
Of anyReaction, including those that are pending or threatened, and all
ings Wl .'respect thereto.
Section No Conflict pf'1nterest' Swire agrees to comply with Section 2-612 of the City
Code as of t1ZeEffective Date, with respect to conflicts of interest.
Section 38. Nahird-Paqr Beneficiary. No persons or entities other than Swire and the City,
their heirs, permitteel successors and assigns, shall have any rights whatsoever under- this
Agreement.
Section 39. Counterparts. This Agreement may be executed in two or more counterparts,
each of which shall constitute an original but all of which, when taken together, shall constitute
one and the same agreement.
NOW, WHEREOF, the City and Swire have caused this Agreement to be duly executed.
[Signature blocks for City and Swire]
(N13037260;7 ) 15
WIRE PROPERTIES, INC, a Florida :for profit corporation
BY:
Name:
Title:
M3037260;7 ) 16
CITY OF MIAMI, FLORIDA
BY:
Name:
Title:
[M3037260;71 17
Legal Deser4
( M3037260;7 )
18
Conceptual Site Plan
(M3037260;7 ) 19
Exhibit "C
Brickell CitiCentre Regulating Plan and ign Guidelines
N13037260;7 I 20
(
Exhibit "D"
Tree Preser,vation and MitigatiOnTlan
VS=i,
{ M3037260;7 ) 21